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Principles - mens rea - recklessness - Cunningham and Caldwell

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The words ‘malice’ ‘wilful’ and ‘reckless’ have much the same meaning

They are found in two groups of statutory and common law offences.

 

Unfortunately what is ‘reckless’ varies.

The test is, was the recklessness ‘subjective’ or ‘objective’.

Cunningham - Subjective Recklessness

R v Cunningham [1957] CA

In R v Cunningham [1957] the term ‘subjective recklessness’ first appeared

Sometimes called ‘Cunningham Recklessness’.

 

Offences: offences that can be committed ‘Cunningham Recklessly’, include non-fatal offences against the person; rape; Theft Act offences, some Common Law offences.

The Test:

Did D consciously take an unjustified risk?

Caldwell/Lawrence - Objective Recklessness

In MPC v Caldwell (1982) and R v Lawrence [1982] (decided on the very same day) the term ‘objective recklessness’ first appeared. Sometimes called ‘Caldwell/Lawrence Recklessness’

Offences: offences that can be committed with ‘Caldwell/Lawrence Recklessness’ are now very limited following R v G and another  [2003] HL

 

The Test:

Was there an obvious risk which D consciously took or unconsciously took?

This means:-

[Two limbs]

First limb: D does any act which creates a serious [serious = not negligible] risk, that must be obvious

[to a reasonable prudent man] [objectively viewed]

and

Second limb:

a):  has recognised some such risk and nevertheless taken it

[advertant recklessness].

 

 or

b) he must either not even address his mind to the possibility of there being some such risk and the risk was obvious

[inadvertent recklessness] .

Note: ‘Caldwell/Lawrence’ broadened ‘Cunningham’

So, all ‘Cunningham Recklessness’ is also ‘Caldwell/Lawrence Reckless’, but not the other way round.

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